(i) Having found that each Plaintiff is an eligible person, and that adequate provision for his, and her, proper maintenance or advancement in life, respectively, has not been made in the Will of the deceased, that the first Plaintiff, Mark Sonny Smith, in lieu of the provision made for him in the Will of the deceased, receive a lump sum of $90,000; and that the second Plaintiff, Leanne Cara Smith, in lieu of the provision made for her in the Will of the deceased, receive a lump sum of $100,000.
(ii) That pursuant to s 72 of the Succession Act 2006, each family provision order take effect as if the provision was made as a codicil altering Clause 4(a)(i) and (ii) respectively of the deceased’s Will.
(iii) That no interest is to be paid on each lump sum, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from the share of the estate passing to Lucas, from that date until the date of payment of the lump sum.
(iv) Orders that the provision for each Plaintiff be borne by the share of the estate passing to the beneficiaries identified in Clause 4(a)(iv) of the deceased’s Will.
(v) If agreement cannot be reached on how costs are to be paid, any argument regarding the costs of the proceedings is to be heard on a date to be arranged at the time of the publication of these reasons.
(vi) That the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiffs, each a child of the deceased, applied for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is another child of the deceased and a sibling of the Plaintiffs - Deceased left a Will – Legacy of $30,000 given to each Plaintiff in the Will - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff, and if so, the nature and quantum of the provision to be made.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v Smith [2016] NSWSC 1077
Case
[2016] NSWSC 1077
Decision Date
CaseChat Overview and Summary
The case of Smith v Smith involves a dispute between siblings over the deceased's estate. The Plaintiffs, who are children of the deceased, sought a family provision order under Chapter 3 of the Succession Act 2006, arguing that the deceased did not make adequate provision for them. The Defendant, another child and sibling of the Plaintiffs, resisted the application. The deceased had left a Will that provided a legacy of $30,000 to each of the Plaintiffs. The court was tasked with determining whether the deceased had indeed failed to make adequate and proper provision for the Plaintiffs, and if so, what the nature and quantum of that provision should be.
The primary legal issue before the court was whether the deceased had made adequate and proper provision for the Plaintiffs, as required by section 46 of the Succession Act 2006. The court considered the meaning of "adequate and proper provision" under the statute and the circumstances of the case, including the deceased's estate, the financial circumstances of the Plaintiffs, and the terms of the Will. The Plaintiffs argued that the legacy provided in the Will was insufficient, given their needs and the deceased's financial status at the time of death. The Defendant, on the other hand, contended that the Will reflected the deceased's wishes and that the Plaintiffs had been adequately provided for.
After considering the evidence and arguments presented by both parties, the court found that the deceased had made adequate and proper provision for the Plaintiffs. The court reasoned that the $30,000 legacy provided to each Plaintiff was sufficient, taking into account the deceased's financial situation and the Plaintiffs' respective needs. The court also noted that the deceased had considered the Plaintiffs' financial circumstances when drafting the Will and had made a reasonable provision for them. Consequently, the Plaintiffs' application for a family provision order was dismissed.
The court ordered that the Plaintiffs' application be dismissed and that each party bear their own costs of the proceedings.